The Law of Defamation

Libel or Slander and Causing Harm to Reputation

Apr 23, 2009 Suzanne Bechard

The law of defamation protects a person's interest in maintaining his or her good name and reputation. Defamation can take the form of either libel or slander.

The tort of defamation involves injury to one's good name and reputation. Defamation can take one of two forms: libel or slander. Libel is defamation that is written or otherwise embodied in physical form. Slander is defamation that is spoken. With the help of a personal injury attorney or defamation attorney, the victim of defamation may bring a civil lawsuit to recover money damages for his or her injury.

Elements of Defamation

A plaintiff in a civil lawsuit must prove all the elements of the tort by a preponderance of the evidence, meaning that the plaintiff must prove that it is more likely than not the defendant committed each element of the tort. The elements of a defamation (libel or slander) claim are:

A false and defamatory communication about the plaintiff
Publication to a third party
Fault amounting to either negligence or intent on the defendant's part
Harm or damage to the plaintiff.

False and Defamatory Communication about the Plaintiff

A defamatory statement is a false statement of fact–not opinion, satire or parody–that would tend to harm the plaintiff's reputation in the community. To be defamatory, the statement must clearly be about the plaintiff. A statement about a group to which the plaintiff belongs will usually not be sufficiently "about" the plaintiff to be defamatory. Additionally, the statement must be false. A statement that is true is not defamatory.

To be Defamatory, the Statement must be Communicated to a Third Party

The defamatory statement must be "published," or communicated, to a third party. Making the statement to the plaintiff alone does not tend to harm the plaintiff's reputation in the larger community. The term "communication" simply denotes that one person has brought an idea to another person's perception. Further, the recipient of the statement must understand its defamatory significance.

Defamation Requires Negligence or Intent on the Defendant's Part

The plaintiff must prove that the defendant published the defamatory communication either intentionally or negligently. Negligence is the failure to behave as the ordinary prudent person would behave under similar circumstances. By contrast, a person commits an intentional tort when he or she either:

Specifically desires to injury the plaintiff; or
Knows that injury is substantially certain to result from his or her act, but acts anyway.

The Libel or Slander must Harm or Damage the Plaintiff

Where libel is concerned, damages are presumed and the plaintiff need not prove special harm. Special harm is harm to one's reputation that results in monetary losses. If the libelous matter requires proof of additional, or extrinsic, facts for one to understand its defamatory meaning or its reference to the plaintiff, it is called libel per quod, which does require proof of special harm.

Slander generally requires proof of special harm. If the defamatory statement amounts to slander per se, however, the plaintiff is not required to prove special harm; damage is presumed. Slander per se includes statements that the plaintiff engaged in criminal behavior or sexual misconduct or that the plaintiff has a communicable disease. Statements that adversely affect the plaintiff's trade or profession are also slander per se.

Defenses to Defamation

Because a statement must be false to be defamatory, truth is a defense to a defamation claim. Additionally, if a plaintiff willingly allows defamatory statements to be published, the plaintiff's consent is a defense. Finally, a defendant may have a privilege to publish what would otherwise be defamatory material. For example, judges, attorneys and witnesses performing their functions in judicial proceedings have an absolute privilege against defamation lawsuits. A defense attorney will be able to advise one who is sued for defamation on the most appropriate defense strategy.

Source: Restatement (Second) of Torts §§ 558-623 (1965).

Additional Resource: How to Hire an Attorney

The copyright of the article The Law of Defamation in Law, Crime & Justice is owned by Suzanne Bechard. Permission to republish The Law of Defamation in print or online must be granted by the author in writing.

Defamation is a Personal Injury Tort	Defamation is Slander or Libel	Defamation Harms One's Reputation
Defamation may Lead to a Civil Lawsuit	Defamatory Statement must be About the Plaintiff